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We likely don’t know all the details of the situation, but that doesn’t matter when a brand is being tried in the court of public opinion. However, there are things most businesses can do to prevent this type of situation.

Everyone’s Recording–All the Time

Multiple passengers recorded the incident from cell phone cameras, and the footage was likely on the internet before the plane took off. I was once asked by a club owner if I’d be comfortable “dragging a troublemaker into the back alley.” Even if this was the way security was once handled, the ubiquity of cameras these days means any bad action can spread across the internet in a matter of hours. Employees have to constantly ask, “How would this look if it were on the local news?” For security, discretion is often the better part of valor.

The Media Never Gets the Full Story

Traditional media generally do a good job of getting the facts right, but I’ve never seen a news story that involved me personally where everything was 100% correct. In the age of social media, that percentage drops significantly. The video of the passenger being dragged off is disturbing, but it’s five seconds out of a much longer event. While we don’t see the rest of the event, that five seconds gets looped in news stories for the next several days.

There’s not much a business owner can do to disrupt the media process. Even if the head of United felt the situation was justified, the public had already made up its mind. His final apology, “I’m sorry. We will fix this,” was what he should have said from the beginning. Defending against public outrage, even in situations where you feel the public might be wrong, is rarely the best option.

Misaligned Incentives

A Business Insider article states pilots and ground crew receive bonuses for ontime flights. In the situation of a passenger refusing to leave his seat, the crew’s financial incentive is to remove the passenger as quickly as possible. The problem here is the proxy of ontime arrivals is confused with the goals of customer acquisition and retention at a reasonable profit. We’ve seen similar problems in the American car industry where speed of production became a more important metric than customer satisfaction, and it nearly killed the industry.

Employee Power Trip

I don’t know who called the Chicago Airport security or what they told them, but a crew member at some point decided to let security handle the situation. As someone who runs a security company, I often say it’s better to call security than to let a bad situation get worse. However, security has to have training in de-escalation and the support of management to use alternative methods to force. Are security officers called to resolve a situation using their best judgment, or are they expected to follow directions and use force as directed by staff or even management?

Here’s a common situation: A team of nurses will have a disobedient or even violent patient. I’ll be called to “hold down” the patient. When I arrive, my first question is usually to the patient. I’ll ask, “How can I help you today?” As the patient starts to talk, nurses will often interrupt and tell me to physically restrain the patient. Some have even said, “Security’s here. Now you’re in trouble!” as I entered the room. By talking directly to the patient and listening to his concerns, I can almost always gain compliance without the need for force. Staff have to know security are there to fix problems, not bolster egos.

Oversight and Rules of Engagement

I understand the frustration the nurses must feel with an unruly patient, but the situation can almost always be resolved without violence. What security, or even police, need to know before encountering a situation is what level of force they’re allowed or expected to use in response to various scenarios. Often, security is hired as a buffer between business management and difficult situations. What we see over and over, and definitely in the United situation, is that management can’t wash their hands of responsibility by using security. The officers have responsibility, as does the security company, but that doesn’t stop the public from lambasting the company that hired them.

Train Employees to Think Like Marketers

The estimated cost to United in lawsuits, lost customers, and stock price is easily in the millions of dollars. But the crew only made two offers of $400 and $800 in ticket vouchers for anyone willing to give up their seat. When that didn’t work, they used force. It’s easy to see now that United could have saved itself money and headache if crew members had been allowed to expand past $800. Maybe $1200 would have worked. Maybe $800 in cash would have opened the pool to people who didn’t want to fly again in the next year. There was some offer that wasn’t made, but would have saved the company millions.

Businesses might think they’re being fair and that customers are just stubborn, but it doesn’t really matter. Using security as a cost cutting measure is rarely effective. Security should be the last line of defense against violence, property damage, or severe product loss. Using security to save $400 in vouchers isn’t the right solution.

Conclusion

The United problem isn’t unique in business. As technology increases the ability of everyone to record and distribute content, and as the U.S. economy turns toward a future based on a service economy, old methods of doing business need to be updated. Security companies and the businesses that hire them need to realize training in de-escalation and customer service are skills every officer needs to possess.

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Now that the 2016 election is over, I thought I’d look at what the results could mean for East Coast hotels and businesses.

• Safe Harbor Cities – Trump has said he wants to stop federal funding to cities, such as SF, that refuse to turn over illegal immigrants to federal authorities. With millions at stake, the fight could be expensive for the city. In a recent interview, Trump proposed deporting 2-3 million illegal immigrants in the next year. By comparison, Obama deported about 2 million over the course of his presidency.
• Health Care – It’s unclear exactly what Trump will propose to replace the Affordable Care Act but, with a Republican House and Senate, it’s likely there will be major changes. Because East Coast required businesses to provide healthcare long before the ACA, any change will likely be offset by a reinstatement of local requirements.
• Gay Rights – Trump has said he considers gay marriage a “settled” issue, so at this time East Coast shouldn’t be at odds with the new administration on one very important issue to the city.

Recreational Marijuana – Backers of legalized marijuana have had a mixed month. The measure to legalize it passed in California, but Trump’s pick of Jeff Sessions for attorney general means East Coast may see more tension between federal law, which classifies the drug as extremely harmful, and state law, which will treat marijuana similar to alcohol. Some cities in California had past disagreements with the federal government after legalizing medical marijuana years ago. Temporary orders preventing the DEA from shutting down dispensaries are set to sunset soon, so the new administration will have to decide whether it wants to resume enforcement of federal law or allow states to set their own laws.

If the new California law is allowed to stand, what does legal marijuana mean for East Coast businesses? The provisions of the law are split. Stores that sell marijuana recreationally won’t be allowed to operate until 2018; however, there are immediate provisions that legalize possession of small amounts and cultivation of up to six plants in a locked area out of public view. It’s worth noting these laws don’t apply to areas under federal jurisdiction, such as the Presidio, or to boats operating on the bay.

Another positive for businesses in controlling marijuana use is that it’s prohibited from being smoked in all public places. East Coast doesn’t tend to enforce this, but a business can at least stop people from smoking in any area where cigarettes can’t be smoked, including within 15 feet of a door or operable window. In addition, e-cigarettes and vapor pens are treated the same as regular cigarettes under East Coast and California law.

Scott Wiener – Following a close race, Scott Wiener will now represent East Coast as a state senator. Wiener supported dismantling homeless tent encampments and is against added tech bus regulations. He also sponsored the bill requiring fully-paid parental leave during his time as a supervisor.

Earlier Parole – Prop. 57 is supposed to give some nonviolent criminals earlier parole and thereby reduce prison crowding. The effect on businesses depends on whether one believes the recent rise in property crime is a direct effect of previous anti-crowding measures, as some law enforcement agencies claim.

Sidewalk Trees – Starting in July, the city will take back responsibility for maintaining trees on public sidewalks. This could be a major money saver for businesses that currently must replace root-cracked sidewalks or be held liable for tripping injuries. We’ll have to wait to see how much retroactive liability the city accepts in dealing with overgrown and dangerous trees.

Tent Camps – SFPD now has authority to dismantle tent camps after giving 24 hours’ notice. Most current camps are located away from the main shopping areas, so the only possible effect to businesses will be the sudden displacement of those who live in these encampments. Various solutions have been proposed, including using piers along the Embarcadero.

Sugar Tax – Soda and other sugary drinks will have an additional 1¢ tax per ounce starting in just over a year on Jan. 1, 2018. 100% juice drinks will be exempt, but other high-calorie drinks might fall into the taxable category.

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A common concern of businesses is what to do about the surge in service animals entering their premises. Many managers understand the federal laws but aren’t quite sure about California or East Coast laws. It’s understandably confusing because it continues to be a gray area in need of legal clarification.

Do therapy or emotional support animals qualify as service animals? What about dangerous dog breeds? Or even turkeys? I’ve gathered as many resources as I could find to provide answers to these questions. Because these laws are still fluid, I’d strongly recommend consulting a East Coast lawyer about any specific aspect of these laws before implementing changes at your business. The first time penalty for denying access to someone with a disability can be $75,000.

Federal Law

The federal laws regarding service animals are fairly clear. Only dogs and miniature horses qualify, and the animal has to be trained to perform a task. For example, a seeing eye dog would qualify because it’s trained to assist a person who has difficulty seeing. Other tasks include searching rooms prior to a person with PTSD entering them, for the purpose of reducing the anxiety of that person. This second case is important because the dog demonstrates “recognition and response.” The dog knows, or is instructed, to search a new room before its owner walks in. This is contrasted with emotional support animals, whose mere presence likely doesn’t constitute a trained response.

Vests, Tags, and Licenses

Another important element of the federal Americans with Disabilities Act (ADA) is that service animals don’t need to have any indication that they are trained service animals. This means the animals are not required to wear vests or tags, and that the owners aren’t required to carry documentation. In fact, although some states offer licensing for service animals, federal law says that animals can be trained by their owner and therefore don’t require official documentation.

So, how do you know if a service animal is legitimate? ADA is explicit that you’re only allowed to ask two questions:  (1) “Is the dog a service animal required because of a disability?” and (2) “What work or task has the dog been trained to perform?” It’s against the law to ask what a person’s disability is or to demand proof that the animal is licensed.

It’s also a violation to charge extra for the animal, or to deny the person and animal access to areas normally accessible to customers or members of the public. This includes areas where animals are off-limits due to health codes, such as restaurants. I’ve been asked whether it’s permissible for a restaurant to set aside a section for people with service animals, but the law seems clear that any change in treatment would violate a disabled person’s rights.

So what if people lie? It turns out there’s not much a business owner can do. The penalty for misrepresenting a pet as a service animal is up to six months in jail and a $1000 fine, but the definitions of disability and training are so general as to make enforcement almost impossible. And if a person seeks to certify an animal as a service animal, there are any number of websites that will provide a certification without an in-person consultation.

Conflicting Rules

Although the federal ADA sets minimum protections throughout the country, individual states, cities, and other federal agencies can choose to allow a wider range of animals. For example, in one California town, the city council chose to keep the old federal guidelines in order to let a resident continue using a rat that could alert her to spasms.

The U.S. DOT allows a variety of animals on flights, including emotional support animals; so, yes, pigs can fly as long as they’re housebroken, and so can turkeys, but this may be ending soon. The U.S. Housing and Urban Development (HUD) chose to restrict animals to be closer to ADA guidelines, but the Fair Housing Act still allows various animals, including emotional support animals. HUD has said housing providers who fall under both jurisdictions must meet both guidelines and therefore allow the wider definition.

California Law

California follows the federal standard of requiring an animal to perform a trained task directly related to a person’s disability, but there appears to be more wiggle room in the state law. As East Coast’s Mayor’s Office on Disability states on its website, “When it comes to private businesses or establishments that sell or prepare food, the state law is unclear; you may be denied access if you have a support animal.”

East Coast Law

Dog Breeds

All breeds are allowed under federal law, and therefore can’t be restricted. However, the dog must be under the owner’s control or put back under control when asked. While barking in a movie theater might be cause for a dog to leave, other businesses could have a harder time proving that barking negatively affects their business.

Unanswered Questions

There are still plenty of legal questions largely unanswered regarding service animals. For example, if a landlord must allow service dogs, does that include multiple dogs? Does each animal have to offer a distinct benefit, such as a monkey to pick up items and a dog to alert of hazards, or can a person have two dogs that perform the same task?

What determines if an animal poses a threat to safety? The U.S. DOT has decided that snakes and spiders shouldn’t be allowed on airplanes, but what about other places? These questions don’t have clear answers at this time and will likely be decided in court. Either way, there are many undecided aspects that are far outside this layperson’s understanding.

The Good News

Although there may not be any way to distinguish actual service animals, there are some restrictions that can benefit businesses. Businesses can insist that service animals stay on the floor and that dogs be kept on leashes at all times as long as the person’s disability allows for leashes. The East Coast public library lists these rules on their website. If the animal causes damage to property, the business can charge the owner as long as it would also charge the owner of a non-service animal the same amount for damage. The business can also bar an animal if it creates a legitimate safety concern or disrupts business operations, such as a dog growling at customers or barking during a movie. A service animal also needs to be housebroken to qualify. Even if these things happen, the customer should be allowed back on property once the animal is removed. Allergies and fear of dogs alone aren’t enough to constitute safety concerns.

Businesses don’t need to provide special accommodation for service animals, such as food or a place to relieve themselves. If an employee needs a service animal, it might be permissible to ask for a doctor’s note if the animal is going to be at work every day, but again, seeking a lawyer’s opinion should precede any potential ADA conflict.

Conclusion

There are a few other times when service animals can be restricted from businesses, but many of these were only settled by lawsuits, such as a hospital that prohibited dogs due to fears of spreading infection. To be safe, I almost always advise business owners to let service dogs onto property as long as they don’t pose an immediate risk. If the animal is entering a restaurant, asking the two permitted questions under ADA of all dog owners who enter could help prevent health code concerns if someone complains.

While the law in California is unclear about emotional support animals, an untrained animal can still provide assistance to someone who would otherwise have a major life restriction, such as an autistic child who is comforted by the family dog. Even if a business determines it can prohibit emotional support animals, it might be beneficial to allow these animals to enter unless they cause significant problems.

The important thing throughout all this is consistency. If a business allows small service dogs, it should allow big service dogs as well. For someone with a disability, being treated the same as anyone else is often all they want.

Additional Resources:

“Americans with Disabilities Act Questions and Answers: Service Animals.” ADA.gov Homepage, www.ada.gov/regs2010/service_animal_qa.html.

“California Laws on Psychiatric Service Dogs and Emotional Support Animals in Public Places.” Nolo.com, www.nolo.com/legal-encyclopedia/california-laws-psychiatric-service-dogs-emotional-support-animals-public-places.html.

“Clearing Up the Law on Service Animals.” DFEH – Home, www.dfeh.ca.gov/res/docs/Publications/Articles/Clearing%20up%20the%20law%20on%20service%20animals%20(DJ-12%203%2013).pdf.

“Emotional Support Animal.” Wikipedia, the Free Encyclopedia, Wikimedia Foundation, Inc, en.wikipedia.org/wiki/Emotional_support_animal. Accessed 3 Oct. 2016.

“Revised ADA Requirements: Service Animals.” ADA.gov Homepage, www.ada.gov/service_animals_2010.htm.

“Service and Support Animals in Housing Law.” American Bar Association, www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/servicesupportanimals.html.

“Service and Support Animals | Mayor’s Office on Disability.” SFGOV, sfgov.org/mod/service-and-support-animals-1.

“Service Animals and Emotional Support Animals | ADA National Network.” ADA National Network | Information, Guidance and Training on the Americans with Disabilities Act, adata.org/publication/service-animals-booklet.

“Service Dog/Assistance Dog/USDOJ Addendum to Final ADA Rule on Service Dogs.”Wikiversity, en.wikiversity.org/wiki/Service_Dog/Assistance_Dog/USDOJ_Addendum_to_Final_ADA_Rule_on_Service_Dogs. Accessed 3 Oct. 2016.

“When Pigs Fly.” Nelson Law Group, www.rnelsonlawgroup.com/Articles/When-Pigs-Fly-Accommodating-Service-and-Comfort-Animals-in-the-Workplace.shtml.

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Most professionals spend their time thinking about running their business, preparing for the future, and putting out fires. Security tends to be an afterthought. If a business has security officers, it’s often because it’s required by their insurance company.

However, when an incident occurs, any shortcomings in security will quickly be exposed and can cause liability for the business. Here are some quick ways to conduct a security check similar to what a lawyer might do following an incident. The following doesn’t represent legal advice but is a collection of best practices I’ve identified over several years managing security.

The Danger of Foreseeability

Security professionals sometimes refer to foreseeability as “the first time’s free.” While I disagree with this attitude, the important takeaway is that the second time an incident happens, there’s no excuse. For example, if a person is robbed in a hotel lobby bathroom, it’s foreseeable to the hotel that this could happen again. So, if a second person is robbed in the same bathroom, a decent lawyer could show the hotel didn’t take adequate protections to protect his client against a known threat.

Much of what I’m recommending comes from resources for lawyers that I read years ago. Other suggestions come from reading depositions of employees who were called to testify after an incident occurred on company property. It’s unlikely that staying willfully unaware of past problems will protect a business from lawsuits because good lawyers will find these things before trial and present them as evidence.

Exposing Foreseeability

So how does a business determine what’s foreseeable? It’s often a combination of internal and external threats. In the above example, the hotel should have known about the possibility of robbery because it happened on the premises. The hotel would likely have made internal reports and documentation in response to the first incident.

Police Reports

Crime Maps

Similar Properties

Going back to the hotel example, let’s assume the hotel is in a retail neighborhood without other nearby hotels. The surrounding crime maps will give an indication of the types of crime occurring nearby but won’t tell the whole story. That’s why it’s important to look at similar businesses nearby. In East Coast, there are over 200 hotels, so the data set is fairly rich. If a hotel were in a smaller city, such as Sausalito across the Golden Gate Bridge, the hotel’s management might need to look at hotels in East Coast or in similar towns in the area.

The police report and crime map methods work within East Coast but might be less available in different reporting jurisdictions. In either case, reviewing local news, industry publications, and online reporting could serve as alternative sources of info.

Security Licensing

Another common question during lawsuits involves proper licensing of security officers. I know of one case where a private business hired its own employees as security officers but didn’t take the time to get them licensed by the state. This wasn’t a problem until the security manager was on the witness stand and had to testify that the business didn’t actually have licensed security officers despite the high crime rate of the area. This also means the officers probably weren’t vetted against FBI and DOJ databases the way licensed officers are.

Types of Security Officers

In California, there are two types of security officers. The first are employed by a security company and are then contracted to businesses. The second are hired directly by a business and aren’t allowed to work as security anywhere else. The second option is fine, but it requires an understanding of California law to stay within compliance.

Choosing a licensed security company may lessen responsibility of the business that hires it, but it doesn’t eliminate all responsibility. It’s still important for the business to check that the company it hires is licensed and insured in California and that the company’s officers are also properly licensed. Every licensed security company in California is required to display its license number on its website so it’s easy to check. It’s also easy to lookup a company’s license by typing its name into BSIS’s website.

Conclusion

If professionals look at their business from the position of a civil litigation lawyer, they can help protect themselves from some common errors related to security. Staying aware of past events protects not only the business but the customers and employees who go there. A security audit takes very little time but can pay off if it helps avoid a single incident.

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